Execution of Waqf Property Decree: Civil Courts Retain Jurisdiction Despite Waqf Tribunal Establishment: Kerala High Court

On November 5, 2024, the Kerala High Court ruled that civil courts retain jurisdiction to execute a decree concerning waqf property even after the establishment of the Waqf Tribunal. The Court clarified that Section 85 of the Waqf Act, which bars civil court jurisdiction, applies only after the Tribunal’s establishment and does not retroactively affect suits validly instituted before the Tribunal’s creation.

This case involved a dispute over the administration and possession of a mosque, Kuttilanji Muslim Mosque, registered as waqf property. In 1996, the petitioners, members of the Thottathikkulam family who managed the mosque, filed a suit in the Munsiff’s Court, Kothamangalam, for declaration of management rights. The trial court ruled in their favor, affirming their right to manage the mosque. In 2016, the appellate court upheld this decision. However, during the pendency of the case, the Kerala Waqf Tribunal was established, raising questions about the decree’s enforceability by the civil court.

Jurisdiction of Civil Court to Execute Decree: The Court held that the civil court, which had validly instituted the suit before the Tribunal’s establishment, retained jurisdiction to execute the decree. It emphasized that no provision in the Waqf Act mandates transferring such suits to the Tribunal retroactively.

“The bar of jurisdiction of Civil Courts under Section 85 of the Waqf Act would be effective only from the Tribunal's constitution; hence, the Civil Court remains a rightful forum for adjudicating waqf disputes filed before that date,” noted Justice Kauser Edappagath.

Section 37 and Execution Jurisdiction: The High Court examined Section 37(b) of the Code of Civil Procedure (CPC) and affirmed that civil courts retain execution jurisdiction, particularly when a Tribunal was not constituted at the time the decree was issued.

Substitution of Interim Mutawalli: The Waqf Board appointed an interim Mutawalli (caretaker) during the execution proceedings. The Court deemed the interim Mutawalli a necessary party, acknowledging the transfer of administrative responsibilities from the former management committee.

The Kerala High Court directed the Munsiff’s Court to execute the decree within three months, reinforcing civil court jurisdiction in waqf matters initiated before Tribunal creation. This ruling clarifies the procedural boundaries of waqf litigation and ensures continuity in legal proceedings involving religious endowments.

Date of Decision: November 5, 2024